What Do Prosecutors Do?
By Robert P. McCulloch
Prosecuting Attorney of St. Louis County, MO, and Past President of NDAA and
(Originally Published in American Legion Magazine)
Back in the 1940s and early ‘50s, in what many regard as the “golden era” of radio drama, one of the more popular programs was “Mr. District Attorney,” which began with the announcer saying, “It shall be the duty of the district attorney, not only to prosecute all crimes committed within his jurisdiction but to defend with equal vigor, the rights and privileges of all its citizens.”
Today, the popular TV program, “Law and Order” begins with the announcement, “In the criminal justice system, the people are represented by two separate and important groups – the police who investigate crime and the district attorneys who prosecute the offenders…”
Interestingly, the earlier description of the district attorney’s mission is more accurate than the second, more recent one. Yes, we do prosecute criminals, but that’s not all we do. Our overriding responsibility is to seek truth and justice, regardless of where that search may lead - whether it results in prosecution and conviction, or in some cases, exoneration. This is a far cry from the distorted and frankly, dishonest image spread by such radio and TV programs as “Perry Mason,” in which private investigator Mason continuously outwits the DA, portrayed as the “heavy”, interested only in sending people to jail.
Our title varies among the states. But whether we’re called “district attorney” – the most familiar term -- or “commonwealth’s attorney”, “prosecuting attorney”, “state attorney”, “county attorney”, or, as in South Carolina, “solicitor” an historic title tracing back to the colonial period, we are, in fact, the people’s attorney – the only public officials specifically elected in 45 states and appointed in the others to represent you in fighting crime.
As prosecutors, we are unique in the law profession. We have only one client, although a collective one: you, the people in our jurisdictions. Our primary responsibility is to protect the rights and safety of the people we serve, including the victims. When you read the familiar criminal charge: “The people of the State of (name) vs. (the defendant), the “people’s” case is presented in court by the prosecutor.
As a general rule, defense attorneys have considerable leeway in making out-of-court statements during a trial, while prosecutors are severely limited by professional ethics standards in what they can say publicly beyond basic explanation of the charges and related information until after the trial is completed. Too often a DA’s obligatory refusal to comment beyond these basic explanations is misconstrued as an effort to hide something.
Although you may see analysts identified as “former federal prosecutors” discussing local crimes on TV talk shows, the fact is that your local district attorney, and his or her counterparts across the country, prosecute more than 95 percent of the crimes in the United States. They also work just as hard to prevent crimes and to rehabilitate young first-time offenders to help them along the path to good citizenship. They are uniquely qualified to do this because they live, work and raise their families in the jurisdictions they serve. They know the territory.
Thus, district attorneys are community leaders, working with civic, religious and educational organizations as well as with social workers and other professionals, often on their own time, to address the roots of crime and make their communities better places in which to live and raise families. While prosecuting criminals, they also work with the victims and their families, addressing their concerns and often assisting them in coping with the violent death of a loved one.
When the people’s safety and interests are threatened, they need a champion. Prosecutors fill that role, sometimes at considerable political risk.
When Paul Gallegos, district attorney of Humboldt County in northern California --- timber country --- decided that Pacific Lumber had apparently lied to state regulators during a 1999 agreement that capped a decade-long battle to save the state’s (which meant the people’s) remaining stands of giant redwoods not already protected in parks or reserves, he and his top assistant filed a civil fraud case against the powerful timber firm. Gallegos contended that the fraud had allowed Pacific Lumber to harvest about $40 million worth of the irreplaceable redwoods each year on 211,000 acres that were supposed to be protected under logging restrictions as part of the 1999 deal. This cost taxpayers $480 million, the Los Angeles Times reported.
The immediate result was a well-financed recall campaign to boot Gallegos out of his job. When it was disclosed that Pacific Lumber had paid $8 a signature to fill out petitions needed to qualify the recall for the ballot and that the timber company and its contractors had contributed more than 80 percent of the money -- $266,000 and still counting at election time – for the recall campaign, the voters of Humboldt County quickly figured out what was going on and who their real friend was. They voted overwhelmingly to retain DA Gallegos, despite what the Times described as “an intensive campaign of radio, TV and direct mail advertisements that portrayed Gallegos as soft on crime and a friend of illegal tree-sitters, rapists and pot growers.” Gallegos rightfully called his victory “a triumph of the people over the influence of money and lies in politics.”
Today’s real-life prosecutors work with the police forces in their jurisdictions in coordinating anti-crime efforts, as well as with federal authorities in multi-jurisdictional situations such as terrorism. As the scope and sophistication of crimes change and increase, prosecutors have created specialized units to deal with such situations as cyber crime, domestic and child abuse, drug trafficking and gangs. They also use the latest technical tools, including computerization and DNA, to ensure that justice is served. They do all this much too often without regard to what should be a sensible workday or workweek, often with inadequate budgets and lean staffs. Approximately 24 percent of the local prosecutors in the United States serve part-time. As a group, prosecutors – except for a very few in the largest metropolitan jurisdictions -- are paid much less than a brand-new law school graduate earns in his or her first job with a large law firm. Obviously they’re not doing it for the money.
Across the country approximately 2,350 local prosecutors’ offices try felony cases in state courts. Some, like those in New York, Los Angeles and Chicago, have hundreds of attorneys, while others – the vast majority – are much smaller. In fact, in a number of rural counties, the prosecutor isthe staff. The median staff size of local prosecutors’ offices in the U.S. is only nine, which includes attorneys and support staff alike. While much emphasis has been placed over the last decade in beefing up police forces or building more prison cells, the median size of prosecutors’ offices has increased by only one person. Ironically, the increase in prosecutors’ staff lags far behind the pace of constructing more jail cells to house the criminals they have convicted.
With increasing caseloads and expanding services - victim witness and youth crime prevention, for example - prosecutors face immense challenges in allocating their time. In my jurisdiction, I work with police on a variety of issues, from evidence collection to training. As a community leader I spend considerable time in community support and crime prevention programs, as well in victim assistance. All this requires more time in management and caring for our staff – the key element in any office.
I still, however, personally try cases, as a reminder to myself and my staff of our primary obligation to the people of our county.